Payment from the 13th week after an ESA claim

So do we have a situation where the Regs state payment is awarded at the start of an assessment phase oppose to Section 2(2) Welfare Reform Act 2007 that states the assessment phase must have ended for payment for the WRAC or SG, all very confusing.

2(2)The conditions of entitlement to the support component are—
.(a) that the assessment phase has ended,
.(b)that the claimant has limited capability for work-related activity, and
.(c)that such other conditions as may be prescribed are satisfied.
.
(3)The conditions of entitlement to the work-related activity component are—
.(a)that the assessment phase has ended,
.(b)that the claimant does not have limited capability for work-related activity, and
.(c)that such other conditions as may be prescribed are satisfied.

I think there is a confusion about “assessment phase” (a concept related to the ESA regime under the WRA 2007 and “assessment period”- which is defined in reg 21 of the UC Regs and does not relate to anything to do with the period prior to which you are on main phase or whatever- assessment periods are simply the one month periods starting with first day of entitlement in which your income/capital and maximum amount etc have to be calculated.

Universal Credit isn’t governed by the 2007 Act - it has its own self-contained equivalent of the ESA components in s12 of the Welfare Reform Act 2012 which provides in fairly general terms for Regs to put to flesh on the bones.

But ESA remains governed by the 2007 Act.  The extract you have cited is immediately followed by subsection (4):

(4)Regulations may— .
(a)prescribe circumstances in which paragraph (a) of subsection (2) or (3) is not to apply;

This is aimed primarily at circumstances such as terminal illness but it would also authorise the D&A Regs which backdate the component to w14 in “new-style” ESA(c)

By the way JM, sorry for not crediting your argument properly before - only read the final page of that monster thread and name-checked the wrong person

Paul/HB
So people on ESA in it’s own right are governed by the Welfare Reform Act 2007 where we talk about ‘assessment phase’ and people on UC due to LCFW are governed by their own regs where assessment period and relevant periods come into play!

Yeah ... or both if you are claiming both UC and ESA(c)!  That’s why there is a fiendishly complicated set of rules for UC pathfinder claimants who shack up with a partner who was already on ESA

Yes, I think I’d also agree with that. “Assessment phase” for ESA is 13 weeks, and remains so, regardless of when the WCA and attendant decisions are made i.e. WRA/Support components become payable from after the 13 weeks has passed from date of initial claim for anyone deemed to have LCW/LCWRA.

With UC, the “assessment phase” referred to above for ESA is now defined as being a “relevant period” of 3 months (equivalent to 13 weeks).

As noted above, therefore, the “assessment period” for a UC claimant with LCW/LCWRA following a WCA kicks in after that “relevant period” has passed i.e. after 3 separate “assessment periods” have passed (as each “assessment period” is one calendar month).

Thus they should also receive the extra components in that 4th assessment period, after 3 months or 13 weeks have passed, regardless of how long it takes for the WCA and decision to be made.

Paul/Martin & Others.

I) It is my understanding that those who claim ESA today (and not UC) the assessment phase finishes at week 13 only if it has been determined that they have LCFW/SG within the 13 weeks or otherwise the assessment phase ends whenever the determination is made if this has passed the 13 week timescale as per Reg 5(1)(2)&(3) ESA REGS 2013 as confirmed in CE3732/2012.

ii) With Paul’s interpretation for those on UC and have been determined to have LCFW/SG these clients may have to wait in excess of the 13 weeks for payment of the WRAC/SG eg 28(1) states that the WRAC/SG will be paid at the start of the assessment period that follows the current assessment period directly after the relevant period eg sick/note handed in on August 1st 2014 - relevant period of 3 months takes us up to November1st - we now enter the first assessment period of 1 month - client is determined to have LCFW/SG on November 3rd - the next assessment period after this is December 1st and this is when client will receive the component as per 28(1) - more loss for the client either way!

J.Mckendrick - 05 August 2014 02:17 PM

Paul/Martin & Others.

I) It is my understanding…..

The answer was given here.

MrFinch - 04 August 2014 11:41 AM

Regulation 7 of the Decisions and Appeals Regulations covers the date a supersession takes effect from, with 7(38) covering this situation:

(38) A decision made in accordance with regulation 6(2)(r) that embodies a determination that
the claimant has—
(a) limited capability for work; or
(b) limited capability for work-related activity; or
(c) limited capability for work and limited capability for work-related activity
which is the first such determination shall take effect from the beginning of the 14th week of
entitlement.

So whichever group the claimant goes into, a successful WCA that moves them off assessment rate takes effect from the 14th week.

Reg.5 is simply about the end of the assessment phase, not the effective date that the payment of the extra component will be implemented from, there really isn’t any other way to explain this, as we’ve all tried to explain this to you above repeatedly, so this is my last post on this issue.

If you don’t believe me, look at the bottom of the page from rightsnet with the decision that you quote - “NB - although not relevant to this case, there is provision for backdating a limited capability for work determination to the end of the 13th week under regulation 7(38) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, allowing the retrospective award of a component from that date.” CE/3732/2012